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Board Issues Decision in Arnaudo Brothers, LP, et al. Case No. 2013-MMC-001

On June 27, 2014, the Board issued its decision and order in the above-entitled case.

Background

On May 13, 2014, mediator Matthew Goldberg (the “Mediator”) issued his report concerning mandatory mediation and conciliation (“MMC”) proceedings between Arnaudo Brothers, LP and Arnaudo Brothers, Inc. (“Arnaudo”) and the United Farm Workers of America (the “UFW”). Both the UFW and Arnaudo filed petitions for review of the Mediator’s report. The Agricultural Labor Relations Board (the “Board”) granted review of the UFW’s challenge to Article 2 and 24 of the MMC contract, dealing with union security, and contract duration. The UFW challenged the Mediator’s decisions to delay the effective date of the union security language and to order a one-year contract.

Board Decision and Order

The Board sustained the UFW’s petition for review and remanded the matter to the Mediator. With respect to Article 2, the Board concluded that the Mediator’s reliance upon the perceived presence or absence of employee support for the UFW ran up against the policies of the exclusive bargaining representative concept. Under the Agricultural Labor Relations Act (“ALRA”), a certified union retains its certification unless and until it is replaced or removed through an election. Unlike the rule under the National Labor Relations Act (“NLRA”), under the ALRA, loss of majority is irrelevant to the continuing validity of the union’s certification. It would be improper for an alleged loss of employee support to be treated as a factor undermining a union’s position in MMC. Employee support issues are generally to be resolved through the union certification or decertification process, not through MMC, and this, along with the potential for much litigation involving the employee support issue and re-litigation of union recognition issues argues for the conclusion that employee support is an impermissible factor to be relied upon by the mediator. The Board held that it is also relevant that Labor Code section 1164, subdivision (e) directly addresses matters such as consideration of comparable contracts and terms and conditions of employment in comparable firms or industries. Because this is the approach contemplated by the Legislature, the mediator’s reliance upon perceived doubts as to employee support was arbitrary and capricious.

The Board reached a similar conclusion with respect to Article 24, finding that the Mediator impermissibly based his ruling on contract duration upon his conclusions concerning employee support for the UFW and his belief that employees might desire an election. The Board also found that the Mediator’s finding of fact that Arnaudo’s employees had never expressed a desire to be represented by the UFW was clearly erroneous. The majority further found that, while a mediator is not required to treat past MMC decisions as binding precedent, Labor Code section 1164, subdivision (e) does require a mediator to consider comparable contracts when ruling on competing proposals and the Mediator provided no explanation of his treatment of the prior contracts presented to him except his belief that employees might not desire union representation, which was not a legitimate basis for his ruling. Chairman Gould wrote separately on this point to state his view that a requirement for the mediator to provide a reasoned distinction between prior and subsequent reports may impose a standard which unduly diminishes the flexibility desirable for a third party mediator and that the mediator should possess an ability to depart from prior reports so long as his or her conclusions are rooted in the relevant MMC criteria found in that statute. In Chairman Gould’s view, in accordance with the general rules governing arbitrators’ treatment of prior awards and contracts, what the mediator did in prior reports should matter little, or not at all, so long as the statutory criteria are met.

See Arnaudo Brothers, LP, et al. (2014) 40 ALRB No. 7

Board Issues Decision in United Farm Workers of America (Corralitos Farms, LLC), Case No. 2013-CL-008-SAL

On June 5, 2014, the Board issued its decision and order in the above-entitled case.

Background

This case involves the commission of a technical unfair labor practice by a union in an attempt to seek indirect review of a decision by the Board in an underlying representation case pursuant to section 1158 of the Agricultural Labor Relations Act (ALRA). Section 1158 is the provision which is commonly utilized by employers to engage in technical refusals to bargain in order to seek court review of a Board decision certifying a union as the exclusive bargaining representative of the employers’ agricultural employees. On March 19, 2014, the General Counsel and the United Farm Workers of America (UFW) jointly filed a “Motion For Board Decision Based On Stipulated Facts And Record.” The stipulated facts include the admission by the UFW that, despite the Board’s decision in Corralitos Farms, LLC (2013) 39 ALRB No. 8, the UFW demanded to be recognized as the exclusive representative of the agricultural employees of Corralitos Farms, LLC (Employer) and later threatened to picket until it received such recognition. In 39 ALRB No. 8, the Board dismissed the UFW’s election objections as well as the General Counsel’s complaint, both of which alleged election misconduct by the Employer. The Board therefore certified the results of the election, in which the “No Union” choice received a majority of ballots cast.

Board Decision

The Board found that the UFW violated section 1154, subdivision (h) of the ALRA. The Board declined to decide if section 1158 is applicable to attempts by a union to seek indirect review of a representation decision through the commission of a technical unfair labor practice because it is an issue of the availability of judicial review that must be decided by the appellate courts. Nor is it a question that can be decided by the Board in the first instance in order to preserve the issue for appeal. A Board decision merely sustaining the allegations in the complaint may allow the UFW to perfect an appeal arguing that section 1158 is applicable. The issue of judicial review is for the judiciary and not for the Board.

Following its long-established practice of refusing to relitigate in unfair labor practice proceedings matters previously resolved in representation proceedings, absent a showing of newly discovered or previously unavailable evidence, or other extraordinary circumstances, the Board found no basis to reconsider its decision in 39 ALRB No. 8. The issues raised by the UFW were considered and addressed by the Board in 39 ALRB No. 8. Disagreement with the Board’s resolution of disputed issues does not constitute grounds for reconsidering an underlying representation decision. The Board rejected the UFW’s argument that a different standard should apply to decisions where a union is not certified as the bargaining representative. The Board also rejected the argument that it must expressly address all disputed issues rather than adopting the findings and conclusions of the administrative law judge with which it fully agrees and which warrant no further analysis.

See United Farm Workers of America (Corralitos Farms, LLC) (2014) 40 ALRB No. 6

Board Issues Decision in Perez Packing, Inc., Case No. 2014-MMC-002

On May 23, 2014, the Board issued its decision and order in the above-entitled case.

Background

Petitioner, United Farm Workers of America (“UFW”), has been the certified collective bargaining representative for the agricultural employees of Perez Packing, Inc. (“Employer”) since December 5, 1989. On January 21, 2014, the UFW requested, in Case No. 2014-MMC-001, that the Board direct the UFW and the Employer (“the parties”) to engage in mandatory mediation and conciliation (“MMC”) pursuant to sections 1164(a)(1) and 11641.11 of the Agricultural Labor Relations Act (“ALRA” or “Act”), with the goal of reaching a collective bargaining agreement (“CBA”), which Employer opposed. The Board, in its decision and order in that matter (Perez Packing, Inc. (2014) 40 ALRB No. 1), set an expedited evidentiary hearing to resolve factual disputes as to whether the UFW had ever made an initial demand to bargain, a prerequisite for direction of MMC. The UFW withdrew Case No. 2014-MMC-001 on May 7, 2014. On May 13, 2014, the UFW filed another request with the Board to order that the parties engage in MMC. The Employer filed its answer opposing this request on May 16, 2014.

Board Decision

Where a labor organization was certified for a particular bargaining unit before January 1, 2003, and such organization requests that the Board direct it and the relevant employer to engage in the MMC process, there are specific factual prerequisites that must be alleged in the declaration accompanying the organization’s request. These prerequisites are described in sections 1164(a)(1) and 1164.11 of the Act, as well as Board Regulation 20400(a). In the instant case, the declaration accompanying the UFW’s May 13, 2014 request was sufficient, and the Employer’s arguments to the contrary were incorrect. The Board also ruled that some language at the end of its decision in 40 ALRB No. 1 (purportedly requiring that the UFW’s initial demand to bargain had to have been made before January 1, 2003 in order to qualify for MMC) was erroneous and is to be disregarded.

The Board, pursuant to Board Regulation 20402(b), ordered that the parties be directed to engage in the MMC process as described in sections 1164-1164.13 of the Act.

See Perez Packing Inc. (2014) 40 ALRB No. 5

Board Issues Decision in Tri-Fanucchi Farms, Case Nos. 2013-CE-008-VIS, et al.

On April 23, 2014, the Board issued its decision and order in the above-entitled case.

Background

On November 5, 2013, Administrative Law Judge Thomas Sobel (the “ALJ”) issued a decision finding that the Respondent, Tri-Fanucchi Farms (the “Employer”), unlawfully refused to bargain with Charging Party United Farm Workers of America (the “UFW”) and unlawfully refused to respond to a UFW information request. The Employer admitted that it refused to bargain with the UFW and refused to respond to its information request but contended that the UFW lost its certification by abandoning the bargaining unit between 1988 and 2012 and that its claims were also barred under the doctrines of unclean hands and laches. The Employer also contended that makewhole would be inappropriate because of its own good faith and dilatory conduct on the part of the UFW and the ALRB’s General Counsel. The General Counsel filed a motion in limine to exclude evidence pertaining to the Employer’s abandonment defense, which the ALJ treated as a demurrer or motion for judgment on the pleadings. The ALJ granted the General Counsel’s motion, rejected the Employer’s abandonment and equitable defenses, found that the unfair labor practice allegations had been proven, and ordered the Employer to pay bargaining makewhole. The Employer filed exceptions.

Board Decision

The Board upheld the ALJ’s decision as modified. The Board held that the ALJ had the authority to consider a demurrer or motion for judgment on the pleadings. The Board further held that the Employer’s abandonment defense fell squarely within a line of Board decisions rejecting that defense as a matter of law. The Board found that the Employer had waived its laches defense and, in any event, laches is not a defense to unfair labor practice proceedings. Additionally, the Board held that, even if the defense were available, the Employer had failed to demonstrate the required element of prejudice. The Board also held that the defense of unclean hands is not available in unfair labor practice proceedings and that, even if it were available, the Employer failed to demonstrate prejudice. The Board held that the Employer failed to preserve its argument that the UFW disclaimed interest in representing the unit and, furthermore, it did not claim that the UFW made an unequivocal good faith statement of disclaimer. The Board agreed with the ALJ that the standard stated in F&P Growers Assoc. (1983) 9 ALRB No. 22 applied to the issue of whether makewhole should be awarded and that, under that standard, makewhole was appropriate. The Board modified the ALJ’s recommended order concerning interest calculation pursuant to H&R Gunland Ranches, Inc. (2013) 39 ALRB No. 21.

Concurring Opinion

Chairman Gould filed a concurring opinion in which he expressed his concern for the problem of agency delay. He stated that, although the facts of this case did not show that there was a delay that would warrant denying the remedy ordered by the Board, he wished to emphasize that the need for prompt and expeditious agency action applies not only to the Board’s General Counsel but also to the Board itself and that, under other facts, the Board risks giving up important remedies through delay. Chairman Gould expressed his intent to ensure that the Board acts with vigilance.

See Tri-Fanucchi Farms (2014) 40 ALRB No. 4

Board Issues Decision in Arnaudo Brothers, LP, et al. Case No. 2012-CE-030-VIS

On April 4, 2014, the Board issued its decision and order in the above-entitled case. This matter is based on allegations that Arnaudo Brothers (Employer) violated sections 1153(a) and (e) of the Agricultural Labor Relations Act (ALRA) by refusing to furnish information to the United Farm Workers of America (UFW) and by refusing to bargain with the UFW.

ALJ Decision

On September 26, 2013, the Administrative Law Judge (ALJ) issued his recommended decision and order. The ALJ found Respondent violated sections 1153(a) and 1153(e) of the ALRA, rejecting Respondent’s various defenses. The ALJ held that Respondent, without justification, failed to timely respond to the information requests, and in some cases, did not respond at all. The ALJ also found that Respondent, without justification, failed to meet with the UFW in negotiations.

Board Decision and Order

The Employer argued in its exceptions that during the hearing, the ALJ prevented Employer from pursuing lines of questioning that would have elicited evidence on the UFW’s alleged disclaimer of interest and waiver of rights due to its 30 year absence. The Board rejected the Employer’s abandonment defense, stating that it was well-established that the union’s absence alone did not constitute a waiver of rights, rather “[o]nly two events aside from decertification in a Board election have been recognized as effective to terminate a certification: (1) a disclaimer by the certified union of its status as collective bargaining representative or (2) the certified union’s ‘defunctness,’ i.e., its institutional death and inability to represent the employees.” (Pictsweet Mushroom Farms (2003) 29 ALRB No. 3, p. 6.) The Board found that it had insufficient evidence to determine whether a disclaimer of interest had occurred because the record was not fully developed on that issue. Therefore, the Board remanded the matter to the ALJ to take evidence on the sole issue of whether a disclaimer of interest occurred.

The Board dismissed the Employer’s remaining exceptions and upheld the remainder of the ALJ’s decision.

See Arnaudo Brothers, Inc. (2014) 40 ALRB No. 3

Governor Brown Announces Appointment of William B. Gould IV to ALRB

On February 19, 2014, Governor Edmund G. Brown, Jr. announced the appointment of William B. Gould IV as member and chair of the Agricultural Labor Relations Board effective March 18, 2014.

Mr. Gould has been Charles A. Beardsley professor of law, emeritus at Stanford Law School since 2002, where he has held multiple positions since 1972, including professor of law. He was chairman of the National Labor Relations Board from 1994 to 1998. Mr. Gould was a visiting professor of law at Harvard Law School from 1971 to 1972, professor of law at Wayne State University Law School from 1968 to 1972 and a lawyer at Battle Fowler Stokes and Kheel from 1965 to 1968. He was an attorney-advisor for the National Labor Relations Board from 1963 to 1965 and assistant general counsel for the United Automobile Workers from 1961 to 1962. Mr. Gould is a member of the National Academy of Arbitrators. He earned a Bachelor of Laws degree from Cornell Law School.

See Governor Brown's Press Release.

Office of Administrative Law Approves Regulations To Implement Senate Bill 126

On May 2, 2012, the Office of Administrative Law (OAL) approved the regulations adopted by the ALRB on April 18, 2012, implementing Senate Bill 126 and filed the approved regulations with the Secretary of State. OAL also granted the ALRB's request that the regulations go into effect immediately upon filing, therefore the regulations are now in effect. On April 18, 2012, the Agricultural Labor Relations Board (ALRB or Board) adopted regulations to implement Senate Bill 126. That bill made various changes to the Agricultural Labor Relations Act. The Board had previously held a public hearing on January 20, 2012 on the proposed regulations, hearing oral comments and accepting additional written submissions. At its scheduled February 1, 2012 public meeting the Board voted to adopt the regulations with what were considered nonsubstantive changes in response to the public comment received. While the proposed regulations were pending review by the OAL, it came to the Board’s attention that some of the changes arguably could be termed “substantive” and thus may have required a 15-comment period. Accordingly, in order to ensure complete compliance with the letter of the rulemaking requirements of the Administrative Procedure Act (Gov. Code § 11340, et seq.), on March 21, 2012 the Board withdrew the rulemaking file from OAL and rescinded its February 1, 2012 adoption of the proposed regulations. The Board then issued a 15-Day Notice providing the public the opportunity to submit comment on the changes made. No comments were received.

Text of Amendments to Implement SB 126, as Adopted on April 18, 2012

Subsequent Histories Table

The Subsequent Histories Table has been updated to include Board decisions through Volume 38 (2012). The updated pages are page 40 and 41.

See Subsequent Histories Table for updated page.

2010 and 2011 Case Digest Supplements

The supplements to the ALRB Case Digest for Volume 36 (2010) and Volume 37 (2011) can be used in conjunction with the digest issued in January of 1994 and the earlier supplements previously issued.

See 2010 ALRB Case Digest Supplement and 2011 ALRB Case Digest Supplement.

Case Digest Merged

The Case Digest and its supplements through 2011 have been merged into one document.

See ALRB Case Digest.